M/S Vethesta Constructions And vs Union Territory Of Jammu And ...
2021 Latest Caselaw 910 j&K

                                                                      Sr. No. 166
                                                         (Before Notice Cause list)



         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU
                       (through virtual mode)

                                              WP(C) No. 1665/2021
                                              CM No. 6478/2021


M/s Vethesta Constructions and                                  .....Petitioner(s)
Another

                      Through: Mr. G.Q Bhat, Advocate.

                 Vs

Union Territory of Jammu and Kashmir                        ..... Respondent(s)
and Others

                      Through: Mr. F.A Natnoo, AAG.

Coram:       HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                                  ORDER

18.08.2021

1. It is contended that the petitioners are working as contractors and

executing different government works and the competent authority had issued

certificate of registration and up-gradation of contracts under the Jammu and

Kashmir Registration of Contractors Rules, 1969 in favour of the petitioners

which are duly renewed from time to time. It is contended that the Chief

Engineer, PMGSY (JKRRDA) Jammu had issued three separate e-procurement

Notices inviting e-Tenders with respect to the works figuring at Sr. No. 5 and 6

of the e-Procurement Notice issued by respondent Director Geology and Mining

Department Jammu and Kashmir Jammu vide his communication bearing No.

CEJ/PMGSY/511 of 2017-18 dated 08-03-2018 wherein the works figuring at sr.

No. 12 and 13 of the e-Procurement Notice issued by the respondent Chief

Engineer PMGSY (JKRRDA) Jammu vide his communication

No.CEJ/PMGSY/549 of 2018-19 dated 04-09-2018. It is further contended that

the petitioner No.02 competed for the work figuring at Sr. No. 26 of the

e-Procurement Notice issued by the respondent Chief Engineer PMGSY

(JKRRDA) Jammu in terms of communication No.CEJ/PMGSY/644 of 2017-18

dated 30-07-2018.

2. Further contention of the petitioners is that the works figuring at Sr.

No. 5, 6, 12, 13 and 26 of the abovementioned e-Procurement Notices inviting

e-Tenders dated 08-03-2018, 04-09-2018 and 30-07-2018 were allotted to the

petitioners vide Letter of Acceptance issued by the Chief Engineer PMGSY

(JKRRDA) Jammu in terms of communication No. CEJ/PMGSY/4684-93 dated

02-06-2018, Letter of Acceptance issued by the Chief Engineer PMGSY

(JKRRDA) Jammu vide his communication No. CEJ/PMGSY/4694-703 dated

02-06-2018, Letter of Acceptance issued by the Superintending Engineer

PMGSY Circle Reasi-Udhampur H. Q Reasi vide communication No.

SE/PMGSY/R/1475-84 dated 06-09-2018, Letter of Acceptance issued by the

Chief Engineer PMGSY (JKRRDA) Jammu vide his communication No.

CEJ/PMGSY/20995-21004 dated 26-10-2018, Letter of Acceptance issued by

the Chief Engineer PMGSY (JKRRDA) Jammu vide communication No.

CEJ/PMGSY/29048-57 dated 26-03-2019. Accordingly, in pursuance of the

abovementioned letters of acceptances, notices to proceed with the works in

accordance with the contract documents viz rate structure, agreement, etc., have

been issued in favour of the petitioners by the respondent Chief Engineer

PMGSY (JKRRDA) Jammu vide his numbers CEJ/PMGSY/5336-45 dated 09-

06-2018, CEJ/PMGSY/5347-56 dated 09-06-2018, CEJ/PMGSY/2 1687-96

dated 31-10-2018 and CEJ/PMGSY/2 124-33 dated 10-05-2019 and

subsequently, in terms of the abovementioned allotted works, the petitioners

have installed movable/mobile crushers which are free from pollution hazardous

and are scientifically designed by the company and are also pollution free

devices/crushers. However, the official respondents i.e., the District Mineral

Officer/Authorized Officer Geology and Mining Department J&K Government

Jammu issued a communication No. DMO/Rsi/Seizure/2020-21/233-35 dated

17-07-2021 addressed to Station House Officer Police Station Chassana whereby

crushed bajri 810 cubic meter, screened sand 49 cubic meter and REM 20 metric

ton have been seized.

3. It is contended by the petitioners that the respondents instead of

seizing the material can recover an amount of maximum Rs. 30940/- for the

crushed bajri 810 cubic meter, screened sand 49 cubic meter and RBM 20 metric

ton as per the mandate of Schedule Second Part-B of the Mines and Minerals

(Development and Regulation) Act, 1957 and the petitioners are ready to deposit

the amount as royalty for per ton of crushed bajri, screened sand and RBM Rs.

20 per ton in spite of exemption.

4. It is also contended that even otherwise the respondents have to

consider the issue having regard to decision of Apex Court rendered in Civil

Appeal No. 10717 of 2014 and connected appeal title "Promoters and Builders

Association of Pune Vs. State of Maharashtra and Others", reported as (2015)

12 Supreme Court Cases 736.

5. Having heard learned counsel for the parties.

6. As per petitioners, the respondents are required to consider the issue

in terms of above judgment and as such they failed to act in accordance with

decision rendered in aforementioned case. Therefore, feeling aggrieved of

communication No.DMO/Rsi/Seizure/2020-21/233-35 dated 17-07-2021 issued

by the District Mineral Officer/Authorized Officer Geology and Mining

Department J&K Government Jammu, the petitioners have filed the present

petition.

7. Mr. F.A Natnoo, learned AAG has resisted the petition and

vehemently stated that this petition is not maintainable as the remedy is available

to the petitioners that they should have approached the authority concerned

instead of filing the present petition before this Court.

8. Learned counsel for the petitioners after arguing for a while

submitted that this petition can be disposed of, at its threshold, with a direction

to the respondents to consider the case of the petitioners in terms of the judgment

passed by Hon'ble the Supreme Court in above titled case and the rules

governing the field within a shortest possible time, to which course Mr. F.A

Natnoo, learned AAG is not averse.

9. On request, this petition is disposed of, with a direction to the

respondents-competent authority to consider the claim of the petitioners as

projected in the petition, strictly under rules governing the field and having

regard to judgment passed by Hon'ble the Apex Court in case title "Promoters

and Builders Association of Pune Vs. State of Maharashtra and Others",

reported as (2015) 12 Supreme Court Cases 736. The respondents-competent

authority shall take a decision in the matter within a period of one week from the

date a certified copy of this order along with complete paper book is made

available to them by the petitioners. The petitioners shall be at liberty to

approach this Court in case any adverse order is passed against them. It is made

clear that this Court has not expressed its opinion on the merits of the case.

10. Disposed of as above along with connected application.

(Tashi Rabstan) Judge Jammu 18.08.2021 Surinder

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

SURINDER KUMAR 2021.08.18 17:05 I attest to the accuracy and integrity of this document